Anzidei v. Town of Cheshire

The claimant was represented by Richard Gross, Esq., Cantor, Floman, Gross, Kelly, Amendola & Sacramone, P.C., 378 Boston Post Road, P. O. Drawer 966, Orange, CT 06477.

The respondents were represented by Lucas Strunk, Esq., Pomeranz, Drayton & Stabnick, 95 Glastonbury Boulevard, Glastonbury, CT 06033-4412.

This Petition for Review from the February 19, 1998 Finding and Dismissal of the Commissioner acting for the Eighth District was heard October 9, 1998 before a Compensation Review Board panel consisting of the Commission Chairman Jesse M. Frankl and Commissioners Donald H. Doyle, Jr., and Michael S. Miles.

OPINION

JESSE M. FRANKL, CHAIRMAN. The claimant has petitioned for review from the February 19, 1998 Finding and Dismissal of the Commissioner acting for the Eighth District. He argues on appeal that the trier erred by dismissing his claim for § 7-433c benefits. We affirm the trial commissioner’s decision.

The trier found that the claimant was hired by the town of Cheshire as a police officer in 1982. He filed a § 7-433c claim seeking heart and hypertension benefits with an August 28, 1995 date of injury. The respondents denied the claim. The issue before the commissioner was whether the claimant showed evidence of hypertension or heart disease at the time of his hire.

The commissioner found that the claimant’s pre-employment physicals in February 1982 noted “elevated blood pressure.” He signed an Acknowledgment of Physical Defect documenting the elevated blood pressure, which was approved by the Fifth District office on February 10, 1982. In 1991, he was treated for a hypertension condition. After an August 28, 1995 incident, he was diagnosed with hypertension and heart disease. The trier found that the claimant had not established the applicability of § 7-433c, as his pre-employment physical showed signs of elevated blood pressure. Thus, the trier dismissed the instant claim. The claimant has appealed that decision.

Uniformed members of municipal fire and police departments who suffer health impairments due to hypertension or heart disease are entitled to compensation under § 7-433c, provided they (a) were hired before July 1, 1996, and (b) upon entry into service, passed a physical examination that “failed to reveal any evidence of hypertension or heart disease.” Leary v. Stamford, 3280 CRB-7-96-3 (Sept. 17, 1997). “The physical examination must reveal no evidence of hypertension or heart disease in order for the claimant to be eligible for the application of § 7-433c.” Suprenant v. New Britain, 28 Conn. App. 754, 758-59 (1992) (citation omitted). Whether or not a physical exam revealed any evidence of hypertension or heart disease is a factual issue committed to the trier’s sound discretion. Tremblay v. Connecticut State Employees’ Retirement Commissioner, 170 Conn. 410, 415 (1976). As long as a commissioner’s findings have roots in the evidence, this board may not invalidate them on review. Leary, supra; Pallotto v. Blakeslee Prestress, Inc., 3651 CRB-3-97-7 (July 17, 1998).

The claimant argues that the trier erred by equating evidence of high blood pressure with evidence of hypertension. He contends that his “mildly elevated” blood pressure readings have no clinical or legal significance, and cites the opinions of Drs. Geringer and Niño in support of that proposition. “[T]here was absolutely no medical evidence on which the commissioner could have concluded that there was evidence of hypertension in 1982.” Brief, p. 9.

Insofar as the claimant contends that a single blood pressure reading need not automatically establish the existence of hypertension, he is correct. We have stated that there is no per se legal hypertension line based on one blood pressure reading. Leary, supra. However, a single high blood pressure reading may constitute evidence of hypertension. See Cooper v. Seymour, 11 Conn. Workers’ Comp. Rev. Op. 274, 1336 CRB-5-91-11 (Nov. 19, 1993) (single 146/88 blood pressure reading constituted “some evidence” of hypertension within trial commissioner’s opinion; CRB affirmed dismissal of claim, even though the only medical opinion stated that there was no evidence of existing hypertension). The phrase “any evidence of hypertension” in § 7-433c is not identical to “a diagnosis of hypertension.” Two “mildly elevated” blood pressure readings, as Dr. Mack described them, can reasonably be construed as evidence of hypertension.

Moreover, the claimant signed an Acknowledgment of Physical Defect reflecting that he suffered from a “mild elevation of blood pressure.” Respondent’s Exhibit 1. Although § 31-325 was repealed in 1995, this acknowledgment is documentary proof that the claimant suffered from a high blood pressure condition that would also constitute evidence of hypertension. The trial commissioner was not required to accept the opinions of the claimant’s doctors and overlook the evidentiary elements that favored the respondents. Pallotto, supra. As his dismissal of the instant claim has support in some of the evidence, we must affirm the trial commissioner’s decision.